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Jean   Murray

6 Things You Need to Know Before Taking Someone to Court

By June 22, 2010

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I confess.  I am a Law & Order junkie.  I watch all the time, and with 20 years' of episodes, I keep finding new ones I enjoy.  But L&O is criminal court, and it isn't the same as civil court, where most business litigation takes place. Before you take a case to court, there are some basic facts about civil litigation you should know.  I recently read a great post on this subject by Jeffrey O'Brien, The Business Man's Lawyer; I'll give you the sub-topics from his post and my own comments:

1. There are No "Sure Things" in Litigation. You never know how a case will turn out.  Just as we have seen it happen on L&O, you may think you have a slam dunk, only to find, as O'Brien points out, you get a judge who disagrees.  For an example, go to the Reader Stories about Small Claims Court article.

2. The U.S. Has no Debtor's Prison. In Small Claims Court, you can get a judgment by the Court for money owed you, but you may have great difficulty collecting the money.  There are ways the Court can put pressure on, with garnishment or a lien against property.  But, as they say, "you can't get blood from a turnip."

3. What You Think is Important Might Not Be. Many times on L&O the defendant is trying to make a point, but they ignore the key point that they committed murder.  I'm not saying you committed murder, but don't get hung up on the small stuff.  Listen to your attorney and follow his/her advice.  Do you want to win the case or make your point?  You usually don't get to do both.

4. You Will Most Likely be Paying Your Attorney's Bills. Unless you are going to Small Claims Court without an attorney, if you are taking this case to court to save money or get a big payoff, it won't happen.  My favorite example is taking a non-compete case to court.  After many months, perhaps years, of litigation on whether the non-compete is reasonable and whether the other party breached your non-compete, the only people who win are the attorneys.

5. Fraud Cases are Difficult to Prove. Many business cases involve fraud, but the list of steps to proving fraud is lengthy, and each one must be proved.  Reasonable doubt doesn't apply here (that's for criminal cases like those on L&O), but imagine trying to prove that someone knew that what their statements were false.  How do you prove that?

6.  Most Cases are Settled Out of Court. Like in L&O cases, the parties don't want to go to court - too expensive and too risky (see #1).  In insurance-related cases in particular, the attorneys often reach an agreement just before trial, when they have the most leverage.  If you want to go to court to make your case heard, don't count on it happening.

The Bottom Line? Understanding these factors can save you a lot of money help you select an attorney.

For More Information

Read Jeffrey O'Brien's Blog Post

All about Small Claims Court

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